In December 2011 the Sunday Times revealed to the world that it had uncovered evidence of a police “hit squad” operating in KwaZulu-Natal under the command of the province’s Hawks boss, Major General Johan Booysen.
The newspaper went on to explain that: “the Cato Manor Organised Crime Unit in Durban has allegedly committed scores of assassinations, some in retaliation for suspected cop killings and others related to ongoing taxi wars”.
Within weeks Noseweek had pointed out various glaringly obvious errors in the Sunday Times article and questioned the motives of its sources.
Two months later, specially appointed police investigators had apparently still not succeeded in finding the “hit squad” evidence that the Sunday Times so confidently claimed to have found, but Minister of Police Nathi Mthethwa nevertheless proceeded to announce the permanent closure of the Cato Manor violent crimes unit “due to the stigma given to it by press reports”.
“We can’t have a situation where you are told there is a problem but you have not had one single police officer facing the music, and no police have been arrested to date in connection with those things,” the police minister explained.
Many have noted that while the minister lacked evidence to support the hit squad allegations, he did have other, political, reasons for wanting to close down Booysen and the Cato Manor police unit. And by doing so, he effectively also closed down the investigation and prosecution of various politically well-connected criminals and corrupt police officers, among them, Lieutenant-General Richard Mdluli, head of police crime intelligence, a well-known Zuma ally.
Now, two years on, with Booysen and a score of Cato Manor policemen having been suspended and arrested in the interim as part of a dramatically staged media circus, what Noseweek and others have long suspected has finally been established: the police and prosecuting authorities still have no credible evidence of the police “hit squad” headed by Maj Gen Booysen that the Sunday Times claimed to have uncovered.
This emerged in the High Court in Durban when, on February 7, Booysen asked Judge Trevor Gorven to overrule the decision by the National Director of Public Prosecutions to authorise his prosecution on two charges of racketeering related to the Sunday Times "death squad" allegations. Booysen’s legal counsel argued that the National Director’s decision was “arbitrary and irrational” and “offended the principle of legality and the rule of law”. In addition, his right to dignity was impaired merely by having to face a prosecution where there were no facts to support a rational decision to authorise his prosecution and to indict him in the first place.
From the evidence presented to the Durban court it emerges that, for her allegedly “arbitrary and irrational” decision, the NPA director relied on the same dubious witness testimony that the Sunday Times relied upon for its story.
The Prevention of Organised Crime Act says that a person may only be charged with racketeering activities if the prosecution is authorised by the national director of the NPA personally. (This requirement, based on similar United States practice, exists because a racketeering charge is serious, but difficult to define and therefore open to abuse. In lay terms, racketeering might best be described as “being involved in a series of serious crimes committed by various people at various times, but by way of a common or joint scheme or purpose.)
The then acting National Director, Nomgcobo Jiba, who authorised Booysen’s prosecution on two charges of racketeering relating to his alleged leadership of or involvement in a “death squad”, claimed in court papers to have made her decision based on “sworn testimony” contained in the statements of three witnesses and the contents of 23 police dockets, all of which were made available to Booysen and his legal advisors.
|Major General Johan Booysen|
In his court papers, Booysen points out that he is referred to only twice in the 23 police dockets. The sole references to him in the statements of some 290 state witnesses contained in those dockets are that: (1) he was noticed at the scene of a shooting, after the event; and (2) he arrived on the scene of a shooting hours after the event. Neither implicated him in any crime, let alone racketeering.
In court the National Director’s counsel, Advocate Laurance Hodes SC, was forced to concede that this was so.
Hodes, perhaps best known for his successful defence of drug dealing gangster Glenn Agliotti when charged with murder, clearly found it a lot more difficult defending his latest client. Early on in the hearing, he had had to abandon his client’s contention that Booysen should not have brought his application in the Durban court (where he has been charged), as it was inconvenient to her and her colleagues who are all based in Johannesburg.
Next, in his court papers, Booysen accused Jiba of being “mendacious” (lying) about having based her decision to authorise the racketeering charges on “sworn” evidence contained in the three separate witness statements listed by her. He proceeded to point out that one of the statements was signed and dated two weeks after she had made her decision, and in any event contained nothing relevant to the charges brought against him; another had not been signed at all, let alone sworn to by the alleged author, while the author of the third had since died, and the only references to Booysen in this statement were hearsay or “double hearsay”. (See Statements that weren't evidence below.)
At this stage in the argument Judge Gorven noted that the then Acting National Director (Jiba) had not denied or in any way responded to Booysen’s accusation that she had lied about having based her decision on “sworn evidence” contained in witness statements. The judge went on to point out that the courts have previously ruled that an official accused of lying is expected to respond, and that a negative inference may be drawn from her failure to have done so.
Judge Gorven then consulted his notes for a few minutes and said: “From the papers, it seems to be clear that she was being mendacious. But what if there are other facts…?”
In response, Hodes argued that earlier correspondence between Booysen and the NPA, in which the exact evidence against Booysen was not listed, could be an indication that there is other evidence against the suspended Hawks officer. Jiba may simply have decided not to mention this supposed other evidence in her affidavit because she did not consider it important.
The judge interjected to point out that this was “mere hearsay”. “Nowhere on oath is it stated that she had access to other material before making her decision. In a hearing where I am asked to make a decision on rationality, the least I would expect would be for her to provide a list of what material evidence she had before making her decision.”
In Booysen’s application, launched in May 2013, Jiba was invited to disclose any other information on which she had based her decision. She ignored the invitation. Her counsel, advocate Hodes argued in court that it might have been a "tactical decision" by Jiba to protect the identities of informers. Judge Gorven was not impressed: "If this was the case, Jiba could have simply given the court a list of what evidence she had relied on without disclosing where it came from."
Concluding his case, Booysen’s counsel Advocate Anton Katz SC argued that if the court found that Jiba had acted in an irrational and unlawful manner for unknown reasons, even possibly because she had been bribed – “and I am not saying that she was bribed” – then the court would have to come to Booysen’s assistance. “This decision to prosecute on racketeering charges is insanity,” Katz said.
To read Adv. Katz's arguments, click HERE.
Judge Gorven reserved judgment.
► Hodes is a member of the Johannesburg Bar. He was previously retained by the National Prosecuting Authority to fight off an application by the civil rights group Freedom Under Law which sought to have murder and other charges reinstated against controversial police crime intelligence boss Richard Mdluli.
► Katz is a member of the Cape and New York Bar Associations as well as the United Nations Study Group on Mercenaries
► The racketeering charges allowed the NPA to charge all the Cato Manor policemen with murder even though, as in the case of Warrant Officer Johnny Smith, they were not even members of the Cato Manor Organised Crime Unit at the time of the alleged murders. During his attempts to deny bail to Booysen and the Cato Manor policemen, Colonel Frans Khola, who was partly in charge of the operation to arrest Booysen and his men, testified that the “high water mark” of evidence against most of the Cato Manor officers was that they were present at the scene when suspects were shot dead.
Khola told the court that it was, he thought, then up to the accused to prove their innocence.
If Booysen’s application succeeds then the racketeering charges will fall away and the State is likely to have to charge each of the accused policemen in separate cases – and prove them.
► For some mysterious reason this latest High Court hearing appears to have escaped the attention of the Sunday Times investigations team.
► While for the past two years investigating officers and prosecutors have been making an embarassing spectacle of themselves, the Sunday Times team has been collecting one journalism prize after another for their heroic exposé, including the Global Shining Light Award at the Global Investigative Journalists’ Network conference in Rio de Janeiro, Brazil in October.
Statements that weren’t evidence
The “Sworn” statements on which the Acting National Director of the NPA Nomgcobo Jiba claimed to have relied when making her decision to prosecute Major General Johan Booysen on charges of racketeering in relation to an alleged police “hit squad” are:
1. Sworn statements by Colonel Rajendran Aiyer (also spelt Ayer), that contained only “office politics” and nothing which could support a racketeering charge. Noseweek has previously reported that Booysen had fired Aiyer, the former commander of the Cato Manor unit, from the Hawks after it was found that he had been running a corrupt meat-distribution racket
using police vehicles.
An example of the “office politics” contained in Aiyer’s statement which the NPA claimed to have used to justify Booysen’s prosecution: He accuses Booysen of having “undermined” his decision to close down the Cato Manor Organised Crime Unit and transfer the members to the Hawks office in the Durban CBD. Noseweek has seen internal police memos that show that Aiyer’s decision was in fact over-ridden by the Provincial Commissioner’s office – because Aiyer had no telephones, no desks, no offices and no parking spaces for the 40-odd policemen he wanted to relocate to the central city.
(Noseweek has established that Aiyer at one stage attempted to solicit the help of the Shaik brothers to persuade President Zuma to promote him to a leadership role in the police. At the time Aiyer also made the pages of Durban’s Sunday Tribune by testifying in court that he had taken a witness statement from a parrot. – Ed.)
2. A statement allegedly by a former police reservist, Aris Danikas. The document is not signed by Danikas, is not dated, and bears no manuscript markings of any sort to link it to Danikas. “It cannot be ascribed to Danikas in the circumstances of this matter,” counsel submitted. “Even if it could be ascribed to Danikas, its contents do not relate to the period and events covered by the indictment.”
Noseweek’s own research has revealed that some years back, when Danikas went to the press, accusing the police of being racist for not promoting him, Booysen suspended him for bringing the police into disrepute. When, subsequently, Danikas attempted suicide after his girlfriend left him, Booysen had his police firearm withdrawn and ordered his dismissal from the Police Reserve Service. He has since emigrated to Greece, leaving a host of angry creditors behind him.
3. A sworn statement by a former police informer (who has since died of an aids-related illness) known as Mr Ndlondlo: “It was common cause that, apart from being ‘replete with hearsay and double hearsay’, this statement also does not implicate Booysen in any of the offences for which he has been indicted.
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